2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-18-2007

Jaworowski v. Ciasulli

Precedential or Non-Precedential: Precedential

Docket No. 05-1423

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Recommended Citation

"Jaworowski v. Ciasulli" (2007). 2007 Decisions. Paper 839.

http://digitalcommons.law.villanova.edu/thirdcircuit_2007/839
The Honorable A. Wallace Tashima, Senior Circuit Judge, *

United States Court of Appeals for the Ninth Circuit, sitting by

designation. 

1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-1423

 

ANDRZEJ JAWOROWSKI,

 Appellant

v.

ROBERT CIASULLI; BOB CIASULLI HONDA;

RP RICHARDS & SON; JOHN DOE 1-10 name being

fictitious, (representing one or more fictitious defendants) 

ABC CORP 1-10 a name being fictitious, (representing one or

more fictitious corporations); XYZ PARTNERSHIP 1-10 

(representing one or more fictitious partnerships)

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

D.C. Civil No. 04-cv-01267

District Judge: The Honorable Harold A. Ackerman

 

Submitted Under Third Circuit LAR 34.1(a)

May 21, 2007

 

Before: BARRY, CHAGARES, and TASHIMA, Circuit Judges *

(Opinion Filed: June 18, 2007)
2

 

Dennis S. Brotman, Esq.

Fox Rothschild

997 Lenox Drive

Princeton Pike Corporate Center

Building 3

Lawrenceville, NJ 08648

Counsel for Appellant

Mark P. Ciarrocca, Esq.

Ciarrocca & Ciarrocca

1155 West Chestnut Street

P.O. Box 303

Union, NJ 07083-0303

Counsel for Appellees

 

OPINION OF THE COURT

 

BARRY, Circuit Judge

Appellant, Andrezej Jaworowski, challenges the order of

the District Court which dismissed his action pursuant to Rules

12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. 

The District Court believed itself bound by our unwillingness to

predict, in Young v. Clantech, Inc., 863 F.2d 300 (3d Cir. 1988),

that the Supreme Court of New Jersey would toll the New Jersey

statute of limitations for personal injury actions during the

pendency of a suit brought in a court which did not have

personal jurisdiction over the defendant. Because we find that

what we said in Young is no longer accurate, we will reverse and
We acknowledge, as we must, that Third Circuit Internal 1

Operating Procedure 9.1 prohibits panels of this Court from

overruling the holdings of precedential opinions of previous panels.

“However, when we are applying state law we are, of course, free

to reexamine the validity of our state law interpretation based on

subsequent decisions of the state supreme court.” Nationwide Ins.

Co. v. Patterson, 953 F.2d 44, 46 (3d Cir. 1991). Although the

Supreme Court of New Jersey has not addressed the issue before

us since Young, there has been a change in the legal landscape

such that we can now predict what we believed “at that juncture”

we could not predict in Young. Young, 863 F.2d at 301. To wait

for the Supreme Court to reach an issue that it may never need to

reach would be to abdicate our responsibility, while sitting in

diversity, “to seek to eliminate inconsistency between federal and

state courts in the application of state substantive law.” Id. at 47.

Nationwide Ins. Co., 953 F.2d at 47. 

3

remand for further proceedings.1

I.

In July 2001, Jaworowski, a New York resident, suffered

a variety of injuries when the scaffold on which he was working

collapsed. The accident occurred at Bob Ciasulli Honda, a car

dealership owned and operated by Robert Ciasulli (collectively,

“Ciasulli”), which is located in Jersey City, New Jersey and

alleged to be a citizen of New Jersey for purposes of diversity

jurisdiction.

Less than two years later, in January 2003, Jaworowski

filed a complaint against Ciasulli and another defendant in the

Supreme Court of New York, Kings County. As that case

progressed, Jaworowski, in September 2003, filed a virtually

identical complaint in the U. S. District Court for the Eastern

District of New York. The federal action, in circumstances

which are not entirely clear from the record, was transferred to

the U. S. District Court for the District of New Jersey in January

2004. The action in the Supreme Court was discontinued by the

parties in May 2004.
 Neither party contests this ruling. 2

 Jaworowski also challenges the finding of the District 3

Court that there was no personal jurisdiction over Ciasulli in New

York and its refusal to allow jurisdictional discovery. Because we

find that equitable tolling is available under New Jersey law, we

need not consider these alternative arguments.

4

In the District Court, Ciasulli moved to dismiss, arguing

that the two-year New Jersey statute of limitations for personal

injury actions, N.J. Stat. Ann. § 2A:14-2, operated to bar this suit

because it was not filed in federal court within two years of

Jaworowski’s injury. The Court agreed. 

First, the District Court decided that the critical question

was whether personal jurisdiction existed over Ciasulli in New

York, because if jurisdiction was lacking in New York then the

statute of limitations of New Jersey, as the transferee forum,

would apply. See Levy v. Pyramid Co., 871 F.2d 9 (2d Cir.

1989). Applying New York C.P.L.R. sections 301 and 302, the 2

Court concluded that there was no personal jurisdiction over

Ciasulli in New York. Given that the federal action in the

Eastern District of New York was not filed until more than two

years after Jaworowski’s cause of action accrued, the Court

applied New Jersey law to determine if its two-year statute of

limitations could be tolled in such a situation. The Court

discussed the Supreme Court of New Jersey’s decision in

Galligan v. Westfield Centre Service, Inc., 412 A.2d 122 (N.J.

1980), at length, but believing itself “bound to follow Third

Circuit precedent,” applied our conclusion in Young that “the

timely filing of a case in a court which lacks personal

jurisdiction over the defendant does not toll the New Jersey

statute of limitations.” Young, 863 F.2d at 301. The Court

dismissed Jaworowski’s action as untimely.

Jaworowski timely appealed. He argues that the District

Court erred in its understanding of New Jersey law regarding the

equitable tolling of the statute of limitations. We have 3

jurisdiction pursuant to 28 U.S.C. § 1291. 
5

II.

As a federal court sitting in diversity, we must, pursuant

to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), apply the

relevant state’s substantive law, which includes its statute of

limitations, Dixon Ticonderoga Co. v. Estate of O’Connor, 248

F.3d 151, 160–61 (3d Cir. 2001), as that law has been set forth

by its legislature or highest court, Packard v. Provident Nat’l

Bank, 994 F.2d 1039, 1046 (3d Cir. 1993). When a state’s

highest court has yet to speak on a particular issue, it becomes

the role of the federal court to “predict how [the state’s highest

court] would decide the issue were it confronted with the

problem.” Packard, 994 F.2d at 1046. To that end, we should

give careful consideration to decisions of the state’s intermediate

appellate courts, see McKenna v. Pac. Rail Serv., 32 F.3d 820,

825 (3d Cir. 1994), and should aim to “eliminate inconsistency

between the federal and state courts in the application of state

substantive law,” see Nationwide Ins. Co. v. Patterson, 953 F.2d

44, 47 (3d Cir. 1991). 

The Supreme Court of New Jersey addressed the

equitable tolling of the New Jersey personal injury statute of

limitations in its 1980 decision in Galligan v. Westfield Centre

Service, Inc., 412 A.2d 122 (N.J. 1980). In Galligan, the

plaintiff brought an action in federal district court within the

two-year limitations period. Recognizing that subject matter

jurisdiction was lacking, the plaintiff, during the pendency of the

district court action but after the two-year limitations period had

run, brought an identical action in the Superior Court of New

Jersey. The district court action was later dismissed and the

question presented to the Supreme Court was whether the statute

of limitations “may be tolled by the filing of a complaint in

federal court which lacked subject matter jurisdiction.” Id. at

123. The Court answered in the affirmative.

In reaching this conclusion, the Supreme Court

considered the goals of the limitations period in the context of

the “obvious and unnecessary harm” that could be worked by its

“[u]nswerving, ‘mechanistic’ application.” Id. at 124. 

According to the Court, the statute was designed to promote the
6

diligent and prompt assertion of rights by plaintiffs, to ensure the

defendants’ “ability to answer the allegations against them,” to

“create[] desirable security and stability in human affairs” by

fostering “eventual repose,” and to spare the courts from the

burden of stale claims. Id. Applying the facts of the case to the

goals of the statute, the Court concluded that allowing the statute

to be tolled during the pendency of the federal action did “no

violence to the purposes underlying” the statute because the

plaintiff timely asserted his rights, “albeit by the unconventional

vehicle of a jurisdictionally deficient complaint,” such that the

defendant could not reasonably claim a sense of repose, and the

claim had not become stale. Id. at 125. 

Eight years after Galligan, in Young v. Clantech, Inc.,

863 F.2d 300 (3d Cir. 1988), we were asked to determine

whether the principle announced in Galligan operated to toll the

limitations period “when a plaintiff files a lawsuit against a

defendant in a court which does not have in personam

jurisdiction over the defendant.” Id. at 300. Noting that

“[s]ignificant policy arguments would support a distinction

between” the defect present in Galligan and that present in

Young, we concluded, in a per curiam opinion, that the “New

Jersey Supreme Court has not extended the remedy of tolling to

encompass such a defect, and we are unwilling, at this juncture,

to predict that it would.” Id. at 301.

The Superior Court of New Jersey, Appellate Division,

disagreed. In Mitzner v. West Ridgelawn Cemetery, Inc., 709

A.2d 825 (N.J. Super. Ct. App. Div. 1998), the Appellate

Division sharply criticized Young and concluded that Galligan

did apply in situations in which the initial action was filed within

the two-year limitations period but in a court that did not have

personal jurisdiction over the defendant. Contrary to what we

had said, the Court could “not perceive any” “significant policy

arguments” to support the distinction we had made in Young

between filing suit in a court that lacks subject matter

jurisdiction and one that lacks personal jurisdiction, and, indeed,

stated that “the filing in a court without subject matter

jurisdiction would seem to be the greater defect” because, unlike

personal jurisdiction, “subject matter jurisdiction may never be
7

waived.” Id. at 828. 

We have previously noted the conflict between Young

and Mitzner. In Island Insteel Systems, Inc. v. Waters, 296 F.3d

200 (3d Cir. 2002), we examined both cases in the course of

selecting “the more appropriate rule as a matter of policy” for

purposes of Virgin Islands law. Id. at 215. In that context, we

found Young to be unpersuasive given its “cursory treatment” of

the policy questions implicated by its holding. Id. at 216. 

Although we acknowledged that Young was a “prediction of

how the New Jersey Supreme Court would decide the question,”

we noted that Mitzner “disapproved Young’s distinction” and

provided the sounder rationale. Id. at 216–17. 

As noted above, when sitting in diversity our role is to

predict how a state’s highest court would rule if a particular

issue came before it. We have no difficulty concluding that the

Supreme Court of New Jersey, if confronted with this issue,

would agree with Mitzner and find that the personal injury

statute of limitations could be equitably tolled during the

pendency of an action brought in a court which lacked personal

jurisdiction over the defendant in those situations in which, as in

Galligan, the goals of that statute would not thereby be offended.

We reach this conclusion for a number of reasons. First,

Mitzner has been cited on several occasions as an example of

tolling that is consistent with the goals of the New Jersey statute

of limitations. For example, in Dixon Ticonderoga, a case in

which we applied the New Jersey statute of limitations, we noted

that “[t]he principal reason for statutes of limitations is to

provide notice to defendants.” Dixon Ticonderoga Co., 248 F.3d

at 168. Mitzner, we explained, was an example of a case in

which tolling “does not undermine this policy” because “the

defendant has . . . received notice.” Id. The Appellate Division

has similarly explained Mitzner and has described it as part of

“[a] long line of New Jersey cases [which] have held that the

filing of an action in one forum will toll the statute of limitations

during the pendency of that proceeding.” Staub v. Eastman

Kodak Co., 726 A.2d 955, 965–66 (N.J. Super. Ct. App. Div.

1999); see also Berke v. Buckley Broad. Corp., 821 A.2d 118,
8

124–27 (N.J. Super. Ct. App. Div. 2003). Most importantly, the

Supreme Court of New Jersey, while not explicitly approving

Mitzner, cited it together with Galligan in its discussion of

equitable tolling as a “doctrine[] [that] in appropriate

circumstances, such as those presented by this case, can be

relevant in determining whether the statute of limitations should

be tolled.” Negron v. Llarena, 716 A.2d 1158, 1164 (N.J. 1998). 

Second, we are persuaded by the numerous cases in

which New Jersey courts have flexibly applied the New Jersey

statute of limitations in order to avoid barring litigants on

procedural grounds. “New Jersey law has been hospitable to

equitably purposed procedural devices” including a generous

discovery rule, a fictitious-names procedure, a principle of

equitable tolling, and a doctrine of substantial compliance.

Staub, 726 A.2d at 964–67 (allowing tolling during pendency of

class action in which plaintiff considered himself a member but

which provided no notice to defendant that plaintiff was

asserting a claim); see LaFage v. Jani, 766 A.2d 1066, 1070–80

(N.J. 2001) (finding that wrongful death statute contemplates

tolling for minors despite statute’s silence); Negron, 716 A.2d at

1162–64 (finding substantial compliance with substantive statute

of limitations governing wrongful death actions where plaintiff

incorrectly brought suit in federal court during limitations

period); Zaccardi v. Becker, 440 A.2d 1329, 1334–36 (N.J.

1982) (“It is now well settled in New Jersey that statutes of

limitation will not be applied when they would unnecessarily

sacrifice individual justice under the circumstances.”); Galligan,

412 A.2d at 123–25; Kaczmarek v. N.J. Tpk. Auth., 390 A.2d

597, 601–05 (N.J. 1978); Berke, 821 A.2d at 124–27; Zacharias

v. Whatman PLC, 784 A.2d 741, 745 (N.J. Super. Ct. App. Div.

2001). 

Finally, given the rationale of Galligan and its progeny,

we can envision no reason why the Supreme Court would

distinguish between an action where subject matter jurisdiction

is lacking and one where personal jurisdiction is lacking. See

Galligan, 412 A.2d at 124 (“Whenever dismissal would not

further the Legislature’s objectives in prescribing the limitation,

the plaintiff should be given an opportunity to assert his claim.”). 
 We note that in Berke, the Appellate Division discussed 4

Galligan and Mitzner as “substantial compliance” cases and set

forth a five-part test adopted by the Supreme Court in Negron.

See Berke, 821 A.2d at 125–26. In Negron, however, the Supreme

Court clearly distinguished between substantial compliance cases

and equitable tolling cases such as Galligan and Mitzner.

See Negron, 716 A.2d at 1164 (“The application of the doctrine of

substantial compliance obviates additional consideration of

whether equitable tolling or the discovery rule should be invoked

to toll the statute of limitations.”). As such, we predict that the

Supreme Court would apply the equitable tolling test announced in

Galligan in determining whether equitable tolling would be

appropriate in cases such as this.

9

In both instances, the defendant has been apprised of the

plaintiff’s claims, showing diligence on the part of the plaintiff,

and the matter has been kept alive for adjudication. If there is

any distinction it is, as the Court in Mitzner correctly noted, that

bringing an action in a court that lacks subject matter jurisdiction

is arguably a “greater defect,” Mitzner, 709 A.2d at 828,

especially in light of the judicial resources that might be wasted

before the defect is discovered and the very real possibility that,

once re-filed in New Jersey courts, the claims will be older and

less amenable to efficient adjudication. See, e.g., Louisville &

Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152–54 (1908)

(ordering court to dismiss case where Supreme Court, sua

sponte, raised lack of jurisdiction). That risk is diminished

where the defect is a lack of personal jurisdiction, as that defect

can be waived by the defendant and the court is capable of

hearing the case and issuing a valid judgment on the merits. 

Therefore, we predict that if given the opportunity to rule

on this issue, the Supreme Court of New Jersey would allow the

equitable tolling of the New Jersey personal injury statute of

limitations during the pendency of an action brought in a court

which lacked personal jurisdiction over the defendant in those

instances in which to do so would not offend the goals of the

limitations statute. See Galligan, 412 A.2d at 124–25. Because 4

this calculus is necessarily fact-sensitive, whether it is
10

appropriate to equitably toll the statute of limitations in this

action should be determined by the District Court in the first

instance. See Island Insteel Sys., Inc., 296 F.3d at 218.

III.

For the foregoing reasons, we will reverse the order of the

District Court and remand for further proceedings consistent

with this Opinion.